Edwards v. Bierman et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
WALTER EDWARDS,
Plaintiff,
v.
MIRNA BIERMAN, et al.,
Defendants.
Case No. 26-cv-05124-AGT (PR)
ORDER OF SERVICE;
ORDER DIRECTING DEFEND-
ANTS TO FILE A DISPOSITIVE
MOTION OR A NOTICE REGARD-
ING SUCH MOTION;
INSTRUCTIONS TO CLERK
INTRODUCTION
Plaintiff alleges that prison staff at CTF-Soledad retaliated against him in violation
of the First Amendment. His 42 U.S.C. § 1983 complaint containing these allegations is
now before the Court for review pursuant to 28 U.S.C. §§ 1915 and 1915A(a).
Plaintiff has stated a First Amendment claim against defendants. On or before
February 15, 2027, defendants shall file a dispositive motion or a notice regarding such
motion relative to the cognizable claims raised in the complaint. Defendants also shall
file an answer in accordance with the Federal Rules of Civil Procedure. No hearing will
be held on any motion unless the Court specifically orders one.
Plaintiff has consented to magistrate judge jurisdiction for all purposes under 28
U.S.C. § 636(c). (Dkt. No. 3.)
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DISCUSSION
A. 	Standard of Review
A federal court must conduct a preliminary screening in any case in which a pris-
oner seeks redress from a governmental entity or officer or employee of a governmental
entity. See 28 U.S.C. § 1915A(a). In its review, a court must identify any cognizable
claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon
which relief may be granted or seek monetary relief from a defendant who is immune
from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally con-
strued. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
A “complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the rea-
sonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting
Twombly, 550 U.S. at 556). 	Furthermore, a court “is not required to accept legal conclu-
sions cast in the form of factual allegations if those conclusions cannot reasonably be
drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55
(9th Cir. 1994). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two es-
sential elements: (1) that a right secured by the Constitution or laws of the United States
was violated, and (2) that the alleged violation was committed by a person acting under
the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
B. 	Legal Claims
Plaintiff alleges that on or around July 7, 2025 at CTF-Soledad State Prison, Mirna
Bierman, a Prison Industry Authority Supervisor, and A. Torres, also a PIA supervisor,
retaliated against him for saying that he would file a grievance. (Compl., Dkt. No. 1 at 7-
9.) When liberally construed, plaintiff has stated a First Amendment retaliation claim
against Bierman and Torres.
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C. 	Motion for the Appointment of Counsel
Plaintiff moves for the appointment of counsel. (Compl., Dkt. No. 1 at 11.) The
decision to request counsel to represent an indigent litigant under 28 U.S.C. § 1915 is
within “the sound discretion of the trial court and is granted only in exceptional circum-
stances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of “ex-
ceptional circumstances” requires an evaluation of the likelihood of the plaintiff’s success
on the merits and an evaluation of the plaintiff’s ability to articulate his claims pro se in
light of the complexity of the legal issues involved. See Agyeman v. Corrections Corp. of
America, 390 F.3d 1101, 1103 (9th Cir. 2004). Neither the need for discovery, nor the
fact that the pro se litigant would be better served with the assistance of counsel, neces-
sarily qualify the issues involved as complex. See Rand v. Rowland, 113 F.3d 1520, 1525
(9th Cir. 1997).
Plaintiff’s motion for the appointment of counsel is DENIED because he has not
shown that extraordinary circumstances are present. This action does not present com-
plex legal issues and he has prosecuted this action ably thus far, his complaint having pre-
sented his claims clearly.
CONCLUSION
For the foregoing reasons, the Court orders as follows:
1. 	The Court orders service of the complaint (Dkt. No. 1), and all attachments
thereto, on defendants Mirna Bierman, a Prison Industry Authority Supervisor, and A.
Torres, also a PIA supervisor. These defendants are employees of CTF-Soledad State
Prison, and these defendants are ordered to respond to the cognizable claims raised in the
complaint.
2. 	Service on these defendants shall proceed under the California Department
of Corrections and Rehabilitation’s e-service program for civil rights cases from prison-
ers in CDCR custody. In accordance with the program, the Clerk is directed to serve on
CDCR via email the following documents: the complaint, a Magistrate Judge jurisdiction
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consent form, this order, a CDCR Report of E-Service Waiver form, and a summons.
The Clerk also shall serve a copy of this order on the plaintiff.
3. 	No later than 40 days after service of this order via email on CDCR, CDCR
shall provide the court a completed CDCR Report of E-Service Waiver advising the court
which defendant(s) listed in this order will be waiving service of process without the need
for service by the United States Marshal Service (USMS) and which defendant(s) decline
to waive service or could not be reached. CDCR also shall provide a copy of the CDCR
Report of E-Service Waiver to the California Attorney General’s Office which, within 21
days, shall file with the court a waiver of service of process for the defendant(s) who are
waiving service.
4. 	Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall pre-
pare for each defendant who has not waived service according to the CDCR Report of E-
Service Waiver a USM-205 Form. The Clerk shall provide to the USMS the completed
USM-205 forms and copies of this order, the summons and the operative complaint for
service upon each defendant who has not waived service.
5. 	Defendants shall complete and file the Magistrate Judge jurisdiction con-
sent form within the deadline provided on the form.
6. 	Defendants shall file an answer in accordance with the Federal Rules of
Civil Procedure.
7. 	On or before February 15, 2027, defendants shall file a motion for sum-
mary judgment or other dispositive motion with respect to the claim(s) in the complaint
found to be cognizable above.
a. 	If defendants elect to file a motion to dismiss on the grounds plain-
tiff failed to exhaust his available administrative remedies as required by 42 U.S.C.
§ 1997e(a), defendants shall do so in a motion for summary judgment, as required by Al-
bino v. Baca, 747 F.3d 1162 (9th Cir. 2014).
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b. 	Any motion for summary judgment shall be supported by adequate
factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of
Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor
qualified immunity found, if material facts are in dispute. If any defendant is of the opin-
ion that this case cannot be resolved by summary judgment, he shall so inform the Court
prior to the date the summary judgment motion is due.
8. 	Plaintiff’s opposition to the dispositive motion shall be filed with the Court
and served on defendants no later than forty-five (45) days from the date defendants’ mo-
tion is filed.
9. 	Defendants shall file a reply brief no later than fifteen (15) days after
plaintiff’s opposition is filed.
19. 	The motion shall be deemed submitted as of the date the reply brief is due.
No hearing will be held on the motion unless the Court so orders at a later date.
11. 	All communications by the plaintiff with the Court must be served on de-
fendants, or defendants’ counsel once counsel has been designated, by mailing a true
copy of the document to defendants or defendants’ counsel.
12. 	Discovery may be taken in accordance with the Federal Rules of Civil Pro-
cedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local
Rule 16-1 is required before the parties may conduct discovery.
Plaintiff is reminded that state prisoners may review all non-confidential material
in their medical and central files, pursuant to In re Olson, 37 Cal. App. 3d 783 (Cal. Ct.
App. 1974); 15 California Code of Regulations § 3370; and the CDCR’s Department Op-
erations Manual §§ 13030.4, 13030.16, 13030.16.1-13030.16.3, 13030.21, and
71010.11.1. Requests to review these files or for copies of materials in them must be
made directly to prison officials, not to the court.
Plaintiff may also use any applicable jail procedures to request copies of (or the
opportunity to review) any reports, medical records, or other records maintained by jail
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officials that are relevant to the claims found cognizable in this order. Such requests
must be made directly to jail officials, not to the court.
13. 	It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the
Court informed of any change of address and must comply with the Court’s orders in a
timely fashion. Failure to do so may result in the dismissal of this action for failure to
prosecute pursuant to Federal Rule of Civil Procedure 41(b).
14. 	Extensions of time must be filed no later than the deadline sought to be ex-
tended and must be accompanied by a showing of good cause.
15. 	A decision from the Ninth Circuit requires that pro se prisoner-plaintiffs be
given “notice of what is required of them in order to oppose” summary judgment motions
at the time of filing of the motions, rather than when the court orders service of process or
otherwise before the motions are filed. Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir.
2012). Defendants shall provide the following notice to plaintiff when he files and serves
any motion for summary judgment:
The defendants have made a motion for summary judgment by which they
seek to have your case dismissed. A motion for summary judgment under
Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your
case.
Rule 56 tells you what you must do in order to oppose a motion for sum-
mary judgment. Generally, summary judgment must be granted when there
is no genuine issue of material fact — that is, if there is no real dispute about
any fact that would affect the result of your case, the party who asked for
summary judgment is entitled to judgment as a matter of law, which will
end your case. When a party you are suing makes a motion for summary
judgment that is properly supported by declarations (or other sworn testi-
mony), you cannot simply rely on what your complaint says. Instead, you
must set out specific facts in declarations, depositions, answers to interrog-
atories, or authenticated documents, as provided in Rule 56(e), that contra-
dict the facts shown in the defendants’ declarations and documents and
show that there is a genuine issue of material fact for trial. 	If you do not
submit your own evidence in opposition, summary judgment, if appropri-
ate, may be entered against you. If summary judgment is granted, your case
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will be dismissed and there will be no trial.
Rand v. Rowland, 154 F.3d 952, 962-963 (9th Cir. 1998).
16. 	No hearing will be held on any motion unless the Court specifically orders
one.
17. 	Plaintiff’s motion for the appointment of counsel is DENIED.
IT IS SO ORDERED.
Dated: October 8, 2026
_________________________
ALEX G. TSE
United States Magistrate Judge
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